Citation Nr: 18149774 Decision Date: 11/13/18 Archive Date: 11/13/18 DOCKET NO. 16-59 109 DATE: November 13, 2018 ORDER Entitlement to restoration of a 10 percent rating for service-connected scar, status post arthroscopic surgery, right ankle is granted. FINDING OF FACT Throughout the period at issue, the Veteran has had one painful scar located on his right ankle. CONCLUSION OF LAW The criteria for restoration of 10 percent rating for service-connected scar, status post arthroscopic surgery, right ankle is granted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.114, Diagnostic Codes (DCs) 7800-7805. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from September 1984 to September 1992, from October 2001 to March 2002 and from January 2003 to December 2010. This appeal is initiated from a January 2016 rating decision that addressed the Veteran’s December 2014 claim for an increased rating for his service-connected scar, status post arthroscopic surgery, right ankle, by reducing the disability rating for that disability from 10 percent to 0 percent, effective April 1, 2016. In January 2016, the Veteran filed a notice of disagreement with that decision and requested that his 10 percent rating for the right ankle scar be restored. In response, the Veteran was issued a September 2016 statement of the case (SOC) that addressed only the issue of whether he was entitled to a compensable rating for his right ankle scar. While there is a procedural defect in this matter, in that the SOC did not also address the propriety of the rating reduction issue, the Board finds that in light of the determination below, which is fully favorable to the Veteran, remanding the claim for a technical correction would serve no useful purpose and only result in an unnecessary delay to the Veteran. The propriety of the rating assigned for a service-connected scar, status post arthroscopic surgery, right ankle. Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the veteran, as well as the entire history of the veteran’s disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as “staging the ratings.” See Hart v. Mansfield, 21 Vet. App. 505 (2007) (noting that staged ratings are appropriate whenever the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings). As explained above, the Veteran was originally assigned a 10 percent disability rating for his service-connected scar, status post arthroscopic surgery, right ankle. In the rating decision on appeal, this disability rating was reduced to 0 percent. The Veteran has appealed that decision and asserts that his right ankle scar is painful and warrants a 10 percent disability rating. See notice of disagreement. The Veteran’s scar, status post arthroscopic surgery, right ankle is rated under Diagnostic Codes 7800- 7805. Under Diagnostic Code 7800, a 10 percent rating is warranted for scars that are located on the head, face, or neck when there is one characteristic of disfigurement. 38 C.F.R. § 4.118, Diagnostic Code 7800. A 30 percent rating is warranted when there is visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, or lips), or; with two or three characteristics of disfigurement. Id. A 50 percent rating is warranted when there is visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets of features, or; with four or five characteristics of disfigurement. Id. An 80 percent rating is warranted when there is visible or palpable tissue loss and either gross distortion or asymmetry of three or more features or paired sets of features, or; with six or more characteristics of disfigurement. Id. For purposes of evaluation of under 38 C.F.R. § 4.118, the eight characteristics of disfigurement are: a scar that is five or more inches, or thirteen centimeters, in length; a scar that is at least one-quarter of an inch, or 0.6 centimeters, wide at the widest part; surface contour of the scar that is elevated or depressed on palpation; a scar that is adherent to underlying tissue; skin that is hypo- or hyper-pigmented in an area exceeding six square inches, or 39 square centimeters; skin texture that is abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches, or 39 square centimeters; underlying soft tissue that is missing in an area exceeding six square inches, or 39 square centimeters; and skin that is indurated and inflexible in an area exceeding six square inches, or 39 square centimeters. 38 C.F.R. § 4.118, Diagnostic Code 7800, Note 1. VA is to consider unretouched color photographs when evaluating under these criteria. Id. at Note 3. Additionally, VA is to separately evaluate disabling effects other than disfigurement that are associated with individual scars of the head, face, or neck, such as pain, instability, and residuals of associated muscle or nerve injury, under the appropriate diagnostic code(s) and apply 38 C.F.R. § 4.25 to combine the evaluation(s) with the evaluation assigned under Diagnostic Code 7800. Id. at Note 4. Finally, the characteristics of disfigurement may be caused by one scar or by multiple scars; the characteristics that are required to assign a particular evaluation need not be caused by a single scar in order to assign that evaluation. Id. at Note 5. Diagnostic Code 7801 applies to burn scars or scars due to other causes, not of the head, face, or neck that are deep and nonlinear. 38 C.F.R. § 4.118, DC 7801. A deep scar is one that is associated with underlying soft tissue damage. Id. at Note 1. Diagnostic Code 7802 pertains to burn scars or scars due to other causes, not of the head, face, or neck that are superficial and nonlinear. 38 C.F.R. § 4.118, DC 7802. A superficial scar is one that is not associated with underlying soft tissue damage. Id. at Note 1. Pursuant to Diagnostic Code 7804, which applies to unstable or painful scars, a 10 percent rating is warranted for one or two scars that are unstable or painful; a 20 percent rating is warranted for three or four scars that are unstable or painful; and a 30 percent rating is warranted for five or more scars that are unstable or painful. 38 C.F.R. § 4.118, DC 7804. An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Id. at Note 1. If one or more scars are both unstable and painful, VA is to add 10 percent to the evaluation that is based on the total number of unstable or painful scars. Id. at Note 2. Additionally, scars that are evaluated under Diagnostic Codes 7800, 7801, 7802, or 7805 may also receive an evaluation under Diagnostic Code 7804 when applicable. Id. at Note 3. According to Diagnostic Code 7805, which applies to other scars (including linear scars) and other effects of scars evaluated under Diagnostic Codes 7800, 7801, 7802, and 7804, VA is to evaluate any disabling effect(s) not considered in a rating provided under such Diagnostic Codes under an appropriate diagnostic code. 38 C.F.R. § 4.118, DC 7805. After reviewing the pertinent evidence of record, the Board finds that the Veteran’s service-connected scar, status post arthroscopic surgery, right ankle warrants a 10 percent rating under Diagnostic Codes 7800-7805. The May 2015 VA examination diagnosed the Veteran with a linear scar on the right ankle. The scar was not found to be painful or unstable and measured 13 centimeters by .2 centimeters. See examination. Another VA examination was performed in August 2016. The Veteran was again diagnosed with a linear scar, status post arthroscopic surgery on his right ankle. He did not have any scars or disfigurement of the head, face or neck. Furthermore, the examiner noted the Veteran’s scar was neither painful or unstable. The scar measured 14.5 centimeters by .2 centimeters and was located over the lateral side of the right ankle. See examination. Here, the evidence of record clearly does not reveal scars causing disfigurement of the head, face, or neck (Diagnostic Code 7800); scars other than the head, face, or neck that are deep or cause limited motion in an area exceeding 6 square inches or 39 sq. cm. (Diagnostic Code 7801); scars other than the head, face, or neck that are superficial, do not cause limited motion, and in an area exceeding 144 square inches or 929 cm. or greater (Diagnostic Code 7802); or superficial unstable scars with frequent loss of skin covering over the scar (Diagnostic Code 7803). However, despite the VA examiners’ findings that the Veteran did not have objective evidence of pain, the Veteran has consistently reported that his scar is, in fact, painful. For instance, in his January 2016 notice of disagreement, the Veteran reports his scar is painful and hurts to touch. Similarly, in his September 2016 VA Form 9, the Veteran states his scar is very painful and is often inflamed. The Veteran is competent to testify to symptoms he observes, such as pain. Accordingly, and resolving all reasonable doubt in the Veteran’s favor, the Board finds his right ankle scar to be painful in nature and thus assigns a 10 percent rating under Diagnostic Code 7804. While this is considered a full grant of benefits, as the Veteran indicated he sought a 10 percent rating in his notice of disagreement, the Board nevertheless notes a higher rating of 20 percent would not be warranted because the Veteran does not have three or four scars that are unstable or painful. Accordingly, for the reasons stated above, the preponderance of the evidence supports the assignment and restoration of a 10 percent rating for the Veteran’s service-connected scar, status post arthroscopic surgery, right ankle. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Churchwell, Counsel